8:15-CR-0060-DOC - 6/16/2016 - Day 8, Volume II 1 UNITED ......Case 8:15-cr-00060-DOC Document 298 Filed 03/31/17 Page 2 of 50 Page ID #:5012. 3 DEBBIE GALE, U.S. COURT REPORTER 8:15-CR-0060-DOC

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DEBBIE GALE, U.S. COURT REPORTER

8:15-CR-0060-DOC - 6/16/2016 - Day 8, Volume II

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

HONORABLE DAVID O. CARTER, JUDGE PRESIDING

- - - - - - -

UNITED STATES OF AMERICA, ) ) CERTIFIED

Plaintiff, ) )

vs. ) No. 8:15-CR-0060-DOC ) Day 8, Volume II

1) NADER SALEM ELHUZAYEL; )2) MUHANAD ELFATIH M.A. BADAWI, ) ) Defendants. )___________________________________)

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Jury Trial

Santa Ana, California

Thursday, June 16, 2016

Debbie Gale, CSR 9472, RPR, CCRR Federal Official Court Reporter United States District Court 411 West 4th Street, Room 1-053 Santa Ana, California 92701 (714) 558-8141

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Case 8:15-cr-00060-DOC Document 298 Filed 03/31/17 Page 1 of 50 Page ID #:5011

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APPEARANCES:

FOR THE UNITED STATES OF AMERICA:

DEPARTMENT OF JUSTICE OFFICE OF THE UNITED STATES ATTORNEY Criminal Division BY: Judith A. Heinz

Assistant United States Attorney 312 North Spring Street 15th Floor Los Angeles, California 90012 213-894-7280 [email protected]

DEPARTMENT OF JUSTICE OFFICE OF THE UNITED STATES ATTORNEY Criminal Division BY: Deirdre Z. Eliot

Assistant United States Attorney 411 West 4th Street Suite 8000 Santa Ana, California 92701 714-338-3500 [email protected]

DEPARTMENT OF JUSTICE OFFICE OF THE UNITED STATES ATTORNEY General Crimes Section BY: Julius J. Nam

Assistant United States Attorney 312 North Spring Street Suite 1200 Los Angeles, California 90012 213-894-4491 [email protected]

FOR DEFENDANT NADER SALEM ELHUZAYEL:

Pal A. Lengyel-Leahu (retained) LAW OFFICES OF PAL A. LENGYEL-LEAHU 360 East First Street Suite 609 Tustin, California 92780 714-497-6813 [email protected]

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APPEARANCES (Continued):

FOR DEFENDANT MUHANAD ELFATIH M.A. BADAWI:

Katherine T. Corrigan (CJA appointment) CORRIGAN WELBOURN AND STOKKE APLC 4100 Newport Place Suite 550 Newport Beach, California 92660 949-251-0330 [email protected]

ALSO PRESENT:

Cambria Lisonbee (assisting Ms. Corrigan) Joshua Hopps (assisting Mr. Lengyel-Leahu)

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I N D E X

Jury Trial - Day 8, Volume II

(Previous proceedings reported by Deborah Parker in Volume I.)

PROCEEDINGS PAGE

5Discussion re exhibits

8Discussion re Jury Instructions

11Argument by Mr. Lengyel-Leahu

11Argument by Ms. Heinz





29Further discussion re exhibits

30Further discussion re Jury Instructions

Further argument by Mr. Lengyel-Leahu

32Further argument by Ms. Heinz

33Further argument by Mr. Lengyel-Leahu

34Court rulings on Jury Instructions

41Verdict forms discussed

41Exhibit forms signed by counsel

43Discussion re newscasts

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SANTA ANA, CALIFORNIA, THURSDAY, JUNE 16, 2016

Day 8, Volume II

(11:20 a.m.)

(Previous proceedings reported by Deborah Parker

in Volume I.)

(Outside the presence of the jury.)

THE COURT: All right. We are on the record. The

jury's not present. The alternates are not present.

All counsel are present. The defendants are

present.

DISCUSSION RE EXHIBITS

THE COURT: Counsel, I want to thank you for going

over the exhibits informally with Debbie. But now I need to

make a record and see if there are disagreements.

Mr. Lengyel-Leahu, have you personally gone over

each of the exhibits?

MR. LENGYEL-LEAHU: Yes, sir, I have.

THE COURT: Ms. Corrigan, have you?

MS. CORRIGAN: I have, Your Honor.

THE COURT: Ms. Heinz, have you?

MS. HEINZ: I have, Your Honor.

THE COURT: Are there disagreements concerning any

of the exhibits? Are there missing exhibits? Is there

something inappropriate about the way that the exhibit's

being presented -- as received into evidence -- to the jury?

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So let me start with the government.

MS. HEINZ: I'm sorry, Your Honor. Just -- I'm

sorry. One more minute.

THE COURT: Sure.

MS. HEINZ: Your Honor, everything -- everything

is fine. There was one missing disc, which is being

replaced upstairs. We're just making a new one.

Counsel and I have reached a decision that that

will just replace the disc that is missing.

THE COURT: Okay. Now, there was a disc lying on

the witness box, loose. And I called the attention to each

of you about that disc, and somebody who was helping picked

that disc up and put it over in the corner.

I'm just wondering if that's your missing disc and

it didn't get mixed up with the luggage, frankly, which was

sitting in the corner.

MS. HEINZ: We have searched pretty diligently for

this.

THE COURT: Whatever that was, in the corner, that

pile of material, you may find it there.

MS. CORRIGAN: Right. But I can represent to the

Court that Mr. Nam and I have gone through what is going to

be on the new disc, and it is representative of what was

admitted into evidence and played for the jury.

THE COURT: Okay. Mr. Lengyel-Leahu?11:22

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MR. LENGYEL-LEAHU: Agree, Your Honor.

THE COURT: Then is the government prepared to

sign --

(To the clerk:) And, Deb, what would you like them

to sign? The back of exhibit list?

THE CLERK: I actually just typed it up, and I'm

going to print it and have them sign it.

THE COURT: Okay.

-- basically a certification that you are

accepting, subject to any objections you may have made,

either the defendant or the government -- but you're

accepting that this is an accurate record and that these are

accurate exhibits that are going to be received by the jury

for their consideration?

MS. HEINZ: Yes, Your Honor. That -- yes, we have

to pull three exhibits out that were not played for the

jury, but were admitted.

So, with that caveat and the fact that a new

disc -- the new disc has to go in there, yes, we are.

THE COURT: Okay. Now, I'm going to wait, because

here's why: I want a total and complete record. I'm not --

or I can do it tomorrow at 2:00 o'clock. But we're here

now. So I'm gonna get off the bench in a few moments.

But until that's done, until the disc is copied,

that's what we're doing today; otherwise, we have to come

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back at 2:00 o'clock tomorrow. So it's not that "it's being

done." There's three exhibits that have to be pulled,

"we're making a copy."

Until I have a complete record that all that's

done...

MS. HEINZ: Understood, Your Honor.

THE COURT: Okay. Let's just delay that

conversation and go back to our jury instructions for a

moment.

MS. CORRIGAN: What are the three exhibits?

MR. LENGYEL-LEAHU: 717, 720, and 725.

MS. CORRIGAN: Okay.

THE COURT: We'll meet after lunch and resolve it

at that time. Okay?

DISCUSSION RE JURY INSTRUCTIONS

THE COURT: Then, concerning the stipulated

instructions, we had gone through all of the instructions up

to what I'm going to call the "material support"

instruction. And there's obviously one instruction that

needs to be pulled. And the instruction that I'm now

pulling is "A defendant has testified."

MS. CORRIGAN: Yes, that's appropriate.

THE COURT: And the preceding instruction

discusses "defendants" in plural.

Do you want me to insert the names of11:24

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Mr. Elhuzayel and Mr. Badawi? It doesn't seem it's

necessary; that this is now an appropriate instruction, and

would read:

"A defendant in a criminal case has a

constitutional right not to testify.

You may not draw any inference of any

kind from the fact that the defendants

did not testify."

I can insert names. I can leave it just as a

standard instruction for the Ninth Circuit.

MS. CORRIGAN: I'm fine with the standard.

THE COURT: Mr. Elhuzayel -- I'm sorry.

Mr. Lengyel-Leahu?

MR. LENGYEL-LEAHU: To make sure that we're

looking at the same thing, you -- you were talking about --

THE COURT: (Reading:)

"A defendant in a criminal case has a

constitutional right not to testify.

You may not draw any inference of any

kind from the fact in that defendants

did not testify."

MR. LENGYEL-LEAHU: Yeah. That's fine the way

it's written.

THE COURT: Okay. I won't include specific names.

MR. LENGYEL-LEAHU: And we're gonna pull the11:25

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following one, which says, "defendant has testified."

THE COURT: That correct.

MS. CORRIGAN: Yes.

THE COURT: Is that acceptable?

MS. CORRIGAN: Yes.

MR. LENGYEL-LEAHU: Yes, sir.

THE COURT: We've gone up to the material support

instructions and the instructions that follow.

So I'd like to take up the remainder of the

instructions. And I think that the eventual decision

concerning the present "material support" instruction

depends upon whether the Court is going to add to the

instructions, as submitted by Defendant Elhuzayel.

And the first proposed additional jury instruction

states, quote,

"To prove the Islamic State is a foreign

terrorist organization, the government

must prove beyond a reasonable doubt

that the Secretary of State designated

the Islamic State as a foreign terrorist

organization.

"Secondly, the government must also

prove beyond a reasonable doubt that the

Islamic State was published as a foreign

terrorist organization in the Federal

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Register prior to the defendant's

arrest."

Mr. Lengyel-Leahu, your argument, please.


ARGUMENT BY MR. LENGYEL-LEAHU

MR. LENGYEL-LEAHU: I think that is a correct

statement of the law, and it should be included to avoid the

jury being confused. They're gonna have to make a finding

of fact at some point as to whether or not either of these

defendants were involved in attempting to join the group

formally known as ISIS and ISIL, or if they were attempting

to join the caliphate, which has been formally declared as

the Islamic State, which is how they refer to themselves.

THE COURT: Okay.

Counsel, are you joining in all the motions --

unless you indicate that you're not -- or are you not

joining in? Ms. Corrigan?

MS. CORRIGAN: I'm not taking a position on this

one, Your Honor.

THE COURT: You're not taking a position. Okay.

Counsel on behalf of the government.

ARGUMENT BY MS. HEINZ

MS. HEINZ: Your Honor, the government opposes

this instruction because it improperly suggests that the

Islamic State needs to be designated as a foreign terrorist

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organization at the time of the criminal conduct. And

that's just not true.

The defendants are charged with providing material

support to ISIS, ISIL, aka the Islamic State. The Islamic

State's an aka, just an alias, for the organization, which

is designated, and this is -- this is -- it's just improper.

THE COURT: All right.

MS. HEINZ: A wrong -- wrong, um -- doesn't set

forth the correct law.

The government did propose a supplemental proposed

jury instruction, that it does address --

THE COURT: And that's in the present packet?

MS. HEINZ: That's in a supplemental, um --

supplemental instructions that we filed. I can approach and

provide them to you, Your Honor.

THE COURT: If I can see that for just a moment.

(Document provided to the Court.)

THE COURT: When was this filed?

MS. HEINZ: Last night, Your Honor.

THE COURT: Oh, that's why I haven't seen it.

MS. CORRIGAN: It's docketed at 155.

THE COURT: Thank you very much. I hadn't seen

that. I have that now, Counsel.

Well, this hasn't been considered by the Court

so -- and, Counsel, you haven't read it yet -- so, instead

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of a snap decision, I need to absorb that and look at the,

uh...

Then, concerning Proposed Instruction No. 2, this

is the Second Proposed Additional Instruction, which

provides a definition of ex post facto laws.

Mr. Lengyel-Leahu.

MR. LENGYEL-LEAHU: Yes, Your Honor.


MR. LENGYEL-LEAHU: The term "ex post facto law"

has been addressed to the jury. I believe this instruction

properly identifies the law in that area and is appropriate

to at least assist the jury in coming to a correct

conclusion.

THE COURT: Okay.

Government?

MS. CORRIGAN: Your Honor --

THE COURT: I'm sorry. Ms. -- I want to check.

Ms. Corrigan?

MS. CORRIGAN: I'm not taking a position on this,

Your Honor.

THE COURT: Government?

MS. HEINZ: Yes, Your Honor.


MS. HEINZ: The government opposes this jury

instruction. There is no ex post facto issue here. The

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government does not need to prove beyond a reasonable doubt

that the Islamic State was designated as a foreign terrorist

organization -- for the same basic reasons that I argued

before with respect to Government's Exhibit 1.

THE COURT: Proposed Jury Instruction No. 3 is an

additional jury instruction that states that "mere

association or membership does not constitute support."

Mr. Lengyel-Leahu.


MR. LENGYEL-LEAHU: Again, we believe this is an

accurate statement of the law as interpreted by Holder v.

Humanitarian Law Project.

I think it would be difficult for the jury to

separate the fact out of membership -- of advocacy of what

we term cheerleading. All of those are constitutionally

protected. And none of those acts -- even -- even swearing

bay'ah -- all of those acts are protected under the First

Amendment. And the jury should separate out those acts,

those pieces of evidence from the fact that what the

government's attempting to prove is travel as a predicate

act to material support.

And I think the jury wouldn't understand that

completely because of the way the government has presented

the case about the terrorism issue. That only comes in on

the element of "knowingly." But the mere acceptance or

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bay'ah or support, retweeting, or writing their own

statements in to support -- even if they tweet that they

don't -- they oppose the United States, they don't like

their -- this country, and they agree with certain acts that

are going on over there -- all of that is protected speech.

And none of that is illegal.

THE COURT: Government -- I'm sorry.

Ms. Corrigan?

MS. CORRIGAN: I'm taking no position, Your Honor.

THE COURT: Government?


MS. HEINZ: Government opposes this instruction.

Parts of this instruction are already covered in

the packet that we have agreed upon. The instructions in

the packet clearly state that -- what is required to provide

material support to the designated foreign terrorist

organization.

In particular, what we've already agreed upon sets

forth the statutory definition of what is required for a

conviction under 2339B. Under the "personnel" prong, the

instructions that we've agreed upon specifically say that

the person must be acting under the direction and control of

the organization and that independent action is not -- is

not included in the definition of "personnel."

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First Amendment, includes vigorous promoting and support of

the Islamic State's activities and or ideologies, even if

the defendant's support benefits the Islamic State" does

not -- does not truly accurately set forth the state of the

law.

If the defendants want a First Amendment

instruction specifically for the First Amendment, the

government does have one that it would -- it would agree to;

although the government's position is, is that First

Amendment instruction is really not necessary here. But

there is -- it approaches -- this -- the reason that the

sentence is incorrect is because, you know, if there is

advocacy promoting or, for example, re-disseminating Islamic

State propaganda in some ways, or re-disseminating things on

behalf of the Islamic State, then that can be material

support, so -- and here, as well, Your Honor, the defendants

are not charged with doing that. That conduct is coming in

for -- to show their intent, but I -- this sentence does not

really set forth what the law is.

MR. LENGYEL-LEAHU: May I respond, Your Honor?

THE COURT: Certainly.

MR. LENGYEL-LEAHU: The language from Holder,

which we included on our proposed instruction, specifically

says:

"The statute does not prohibit being a11:34

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member of one of the designated

groups" --

Meaning the foreign terrorist organizations.

"-- or vigorously promoting and

supporting the political goals of the

group."

That's direct language from the Supreme Court. So

that is the state of the law. And the jury should be made

aware of that 'cause, otherwise, I think they would be

confused.

THE COURT: Counsel, anything further?

MS. HEINZ: Nothing further, Your Honor.

THE COURT: I think we should also clear up, in

light of this last argument, that there are a series of

instructions that counsel jointly are stipulating to, but

this is an additional instruction requested by the defense.

So let me turn to where we left off yesterday,

just for a moment, because I can see that the record might

be confusing -- because Counsel referred to a group of

instructions that we stipulated to.

The first instruction that you represented that

were joint instructions that you were stipulating to starts

with:

"Each defendant is charged in Count One

of the Indictment with a conspiracy to

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provide material support."

That instruction is three-and-a-half pages in

length approximately. That was initially stipulated to by

the government; is that correct?

MS. HEINZ: Yes, Your Honor, that's correct.

THE COURT: And your objection is to the

additional instructions being requested; is that correct?

MS. HEINZ: That's correct, Your Honor.

THE COURT: Mr. Lengyel-Leahu, is this instruction

stipulated to by you, so I have a clear record, and that

you're requesting additional instructions that pertain in

this area?

MR. LENGYEL-LEAHU: That's exactly right,

Your Honor.


Ms. Corrigan?

MS. CORRIGAN: Yes.

THE COURT: All right. So this is stipulated to.

The next instruction was,

"A conspiracy may continue for a long

period of time and may include the

performance of many transactions."

And I'm just reading the first line. There were

subheadings that were submitted to the Court -- well, strike

that. These instructions come with subheadings. If you

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want to have those included, you're more than welcome to.

You two can discuss that.

I was just taking out "proposed" jury instruction

number. But if you look at these, they'll have like

"conspiracy" or "attempt." I leave that to each of you.

But was this stipulated to by the government?


THE COURT: And Mr. Lengyel-Leahu?


THE COURT: Ms. Corrigan?

MS. CORRIGAN: Yes, Your Honor.

THE COURT: The next instruction was,

"Defendant Nader Salem Elhuzayel is

charged in Count Two of the Indictment

with attempting to provide material

support and resources."

Is this stipulated to by the government?


THE COURT: And your understanding of this process

is that Mr. Lengyel-Leahu's requesting additional

instructions which he believes are at least more

appropriate, better define the law, or may even add a

missing element.

MS. HEINZ: That -- my understanding is, yes, he

is proposing additional instructions.

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THE COURT: Let's get through the ones that you

allegedly have agreed to, so I have a clear record.

Are you stipulating to this instruction, with the

understanding there are additional instructions that you're

submitting on this issue?




THE COURT: Then the next instruction is,

"Defendant Muhanad Elfatih M.A. Badawi

is charged in Count Three of the

Indictment with aiding and abetting an

attempt to provide material support or

resources," et cetera.

Is this -- is it stipulated to by the government?

It's two pages.


THE COURT: By Mr. Lengyel-Leahu?


THE COURT: And by Ms. Corrigan?


And, just for the record, the previous

instruction, although I agree with it, it doesn't pertain to

my client.

THE COURT: And the next instruction is,11:38

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"As I have instructed you, Defendant

Nader Salem Elhuzayel is charged with

attempting to provide material support

and resources to a foreign terrorist

organization."

And it goes on for four elements, obviously, that

are set forth.

Is the government stipulating to that instruction?


THE COURT: And Mr. Lengyel-Leahu, are you

submitting -- or stipulating to this instruction?

MR. LENGYEL-LEAHU: Stipulating with the addition

of our language regarding "substantial step."

THE COURT: And I should add that on each

occasion: This is subject to additional language.


THE COURT: But as far as the instruction reads

right now, you're stipulating at least to this instruction

in its present form, subject to additional instructions?


THE COURT: Okay.

Ms. Corrigan?

MS. CORRIGAN: I'm fine with this instruction,

Your Honor.

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pertain to your client.

MS. CORRIGAN: This one does.

MS. HEINZ: No, Your Honor, this one --

MS. CORRIGAN: It has both. My client is

mentioned at line 5.

THE COURT: Oh, my apologies. It does.

MS. HEINZ: And just to clarify, this particular

instruction, just for clarity, sets forth the elements of --

not attempt and not aiding and abetting, but the actual

offense of providing material support and resources to a

foreign terrorist organization.

THE COURT: I just misspoke. It obviously

pertains to both defendants.

Concerning Counts Four through Twenty-nine --

although they don't involve Mr. Corrigan's clients -- or

client -- it reads,

"Defendant Nader Salem Elhuzayel is

charged in Counts Four through

Twenty-nine of the Indictment with bank

fraud."

And then it goes on to delineate this allegation

in a page and quarter.

Is this stipulated to by the government?

MS. HEINZ: Yes.

THE COURT: And by Mr. Lengyel-Leahu?11:40

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THE COURT: And, Ms. Corrigan, this doesn't

pertain to you.

MS. CORRIGAN: Correct.

THE COURT: The next charge does, though. It's in

Count Thirty. And it states,

"Defendant Muhanad Elfatih M.A. Badawi

is charged in Count Thirty of the

Indictment with financial aid fraud,"

et cetera.

It's a one-page instruction.

Is the government stipulating to this?



MS. CORRIGAN: I am.

THE COURT: Mr. Lengyel-Leahu?

MR. LENGYEL-LEAHU: It doesn't apply -- doesn't

apply, but we'll stipulate.

THE COURT: Then we have the concluding

instructions. And I'll simply begin with:

"When you begin your deliberations,

elect one member of the jury as your

presiding juror or foreperson."

Is the government stipulating?

MS. HEINZ: Yes, Your Honor.11:41

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THE COURT: The next instruction:

"Because you must base your verdict only

on the evidence received in the case and

on these instructions, I remind you,"

Et cetera.

Government, stipulating?






THE COURT: That's a page and a quarter in length.

The next is,

"Some of you have taken notes during the

trial."

Is the government stipulating?





MS. CORRIGAN: Yes, Your Honor.11:41

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"Punishment provided by law for the

crimes alleged in the Indictment is for

the Court to decide.

Remember, I'm just reading each topic sentence, or

the first sentence.

Stipulated to by the government?

MS. HEINZ: Yes.



THE COURT: And, Ms. Corrigan?



"A verdict form's been prepared for

you."





THE COURT: The government (sic).



"If it becomes necessary during your

deliberations to communicate with me,

you may send a note through the clerk

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and/or bailiff."



THE COURT: And by the -- Mr. Lengyel-Leahu?


THE COURT: And by Ms. Corrigan?


May we go back to the last -- the one before this

regarding the verdict form?

The Court identified me as the "government" and so

I just would like to indicate for the record that I am

stipulating to that one, which is the one that starts with

"a verdict form has been prepared for you."

THE COURT: Did I skip that?

MS. CORRIGAN: No. But the Court said,

"government," "defense counsel," and then "government"

again --

THE COURT: My apologies.

MS. CORRIGAN: -- so I want the record to be clear

that I'm not with the government.

THE COURT: All right. Thank you.

Ms. Corrigan, you certainly aren't. It will be

stipulated to. Thank you for catching that.

Now, that then covers the agreed-upon instructions

and the debate really over -- is over additional

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instructions or are instructions that better define, or add,

or clarify.

I wasn't aware of this supplemental. I apologize.

I need to take a recess. I need to look at it. I think

this would be a good time for lunch, then, because we're

returning anyway concerning the remaining items.

You tell me the time that's convenient for you. I

just don't want to assemble and have you sitting here. It

can be 1:30. It can be 1:00 o'clock. It can be midnight.

Doesn't matter.

So you know how long it's taking to withdraw the

three exhibits out of the -- and how long it takes to

duplicate the disc.

MS. HEINZ: 1:00 o'clock.

THE COURT: By the way, I think if you look in the

luggage, you might find the disc.

MS. HEINZ: 1:00 o'clock would be fine for the

government.

THE COURT: What do you think, Ms. Corrigan?

MS. CORRIGAN: 1:00's fine.

MR. LENGYEL-LEAHU: 1:00 would be great.

THE COURT: Well, I think it gives me enough time

also to look at the supplemental and to hand down decisions,

hopefully, because we've done a lot of preparation last

night and today anticipating this.

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So let me look at the supplemental for just a

moment. Well, thank you.

We'll see you at 1:00 o'clock.

MS. HEINZ: Thank you, Your Honor.

MS. CORRIGAN: Thank you, Your Honor.

(Lunch recess held at 11:44 a.m.)

(Proceedings resumed at 1:25 p.m.)


THE COURT: We're on the record. All counsel are

present. The defendants are present. The jury and

alternates, of course, are not present.

We've been checking the docket forms also. We

don't see the verdict forms.

MS. CORRIGAN: I don't think they've been filed.

Have they been filed?

MS. HEINZ: They've not been filed, Your Honor.

THE COURT: Do we need verdict forms?

We need verdict forms, don't we?

MS. HEINZ: Yes, Your Honor, we do.

THE COURT: Okay. We need to look at those also.

Do we have copies of them with us, or do you need

to type those?

MS. HEINZ: We need to prepare those, Your Honor.

THE COURT: Okay. So let's make the rulings now,

and then maybe an hour or so come on back and resolve that.

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FURTHER DISCUSSION RE EXHIBITS

THE COURT: I want to go back over the record,

though, concerning the exhibits and find out where we stand,

and if we can resolve any issues.

MS. HEINZ: There are no issues with the exhibits.

They are ready and complete.

THE COURT: So you're ready to sign the

certification?

MS. HEINZ: The government is, Your Honor.


Ms. Corrigan?

MS. CORRIGAN: Thank you, Your Honor. I am also.

And just so that the record's clear from this

morning, when I'd indicated that those three exhibits --

already been pulled out -- those had been pulled out by

Ms. Eliot earlier. She'd shown them to me; but, apparently,

Ms. Heinz wasn't aware of that at the time. So that's why,

if there appeared to be a little confusion that's -- it's

just that I had perhaps a little bit more information from

her. So I wanna make it clear for the record that those

items at that point had already been pulled out.

And at this point, yes, I have reviewed what I --

uh, the entire record of the exhibits, and I am satisfied.

I am prepared to sign off on the exhibit list.

THE COURT: Okay. 01:27

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Mr. Lengyel-Leahu?

MR. LENGYEL-LEAHU: Also, Your Honor, I've also

reviewed all the exhibits and am prepared to sign the

certification.

THE COURT: (To the clerk:) Then, Debbie, will you

give them that.

THE CLERK: I'm almost done with it.

THE COURT: Well, we'll wait because it's going to

be signed in my presence. Okay?

FURTHER DISCUSSION RE JURY INSTRUCTIONS

THE COURT: Then, concerning the rulings, is there

anything further that any counsel would like to state

concerning these proposed additional instructions?

Counsel on behalf of the government?

MS. HEINZ: Nothing, Your Honor.


FURTHER ARGUMENT BY MR. LENGYEL-LEAHU

MR. LENGYEL-LEAHU: I have the chance -- I've had

a chance to read the governmental, uh -- supplemental

proposed instruction. And we would vigorously oppose such

an instruction.

I believe the government has cited and used as

their authority a footnote from the District Court in

New York concerning an issue involving a civil action. The

facts of that case have absolutely no interest or bearing on

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what we're talking about here. And it's all dicta and not

relevant to the actual decision. And it really is in

apposite because the facts of that case involve not an

organization changing its name or changing its allegiance,

but setting up a straw man.

Uh, I don't know if the Court has (verbatim) a

chance to read the case; but, briefly, there was a terrorist

act committed by the Hamas group inside of Israel. Hamas

took credit for it and posted evidence they were actually

actively involved in a suicide bomber.

The surviver from one of the decedents sued the

bank, USB, because, apparently, USB thought it a good idea

to act as a financial conduit for an organization that was

set up to funnel, uh, funds to the Hamas group. Hamas has

been on the foreign terrorist organization list almost since

the beginning of the foreign terrorist organization list.

But this other group was a conduit, a straw man, or an

agency identified by Israeli intelligence, but never added

to the list.

And what the court was addressing is that agency,

that that particular organization was acting on behalf of a

foreign terrorist organization. I don't think the cases

apply. I don't think they're even close to the situation

we're talking about here.

And I -- we vigorously oppose the government's01:29

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proposed instruction and urge the Court to allow the five

additional instructions that we've requested.

THE COURT: Okay.

Counsel on behalf of the government?


FURTHER ARGUMENT BY MS. HEINZ

MS. HEINZ: The government cited that case for the

principle of "agency," which we think would apply. But we

also rely on National Council of Resistance of Iran v.

Department of State. And there are two decisions there, one

right after the other. And, in both of those, the courts

said that it simply makes no sense to, um -- for Congress to

allow the Secretary of State to designate an organization

just -- and then just to have that organization then, the

next day, change its name to avoid the designation.

And so the DC Circuit, in both those cases,

including then Chief Judge Roberts -- now Chief Justice

Roberts -- said, um -- said basically that:

Said, "just as it's silly to suppose

that Congress empowered the Secretary to

designate a terrorist organization only

for such periods of time as it took such

organization to give itself a new name,

and then let it happily resume the same

status it would've enjoyed had it never

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been designated, so too it is

implausible to think that Congress

permitted the Secretary to designate and

FTO to cut off its support in and from

the United States, but did not authorize

the Secretary to prevent that FTO from

marshaling all the same support via

juridically separate agents subject to

its control."

Now, that was a bit -- that was also an agency

case. Here we have actually a much closer connection. We

actually have the same organization, which has just chosen

to adopt an alias, and -- and so it -- the instructions that

Counsel for Defendant Elhuzayel propose just make no sense

and are not the law.

THE COURT: Okay.

FURTHER ARGUMENT BY MR. LENGYEL-LEAHU

MR. LENGYEL-LEAHU: I think they're citing to

another civil case, Your Honor. And I think even the

government'd agree that the standards under civil law versus

criminal law are completely different for complete --

completely different reasons. The due process provide --

uh, provided the Constitution, uh, requires a more specific

reading of a statute than this broad interpretation that

they're suggesting here.

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MS. HEINZ: Nothing further from the government.

MR. LENGYEL-LEAHU: Nothing further, Your Honor.

COURT RULINGS ON JURY INSTRUCTIONS

THE COURT: Concerning Proposed Jury Instruction

No. 1 submitted by the defense, this is the additional jury

instruction, which states,

"To prove the Islamic State is a foreign

terrorist organization, the government

must prove beyond a reasonable doubt

that the Secretary of State designated

the Islamic State as a foreign terrorist

organization.

"Secondly, the government must also

prove beyond a reasonable doubt that the

Islamic State was published as a foreign

terrorist organization in the Federal

Register prior to the defendant's

arrest."

This instruction will not be given. This

instruction is duplicative of the instruction that lists the

elements of the material support of terrorism charge.

Specifically, that instruction provides, quote,

"The defendant provided this support or

resources to a foreign terrorist

organization," end of quote.

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Therefore, the existing instruction already

indicates,

"The government must prove beyond a

reasonable doubt that defendants

provided material support to a foreign

terrorist organization."

Defendant Elhuzayel, as well as co-defendant, are

not precluded from arguing that he, or they, did not provide

material support or resources to an organization that was

designated as a foreign terrorist organization.

Concerning Proposed Instruction No. 2: This

proposed instruction provides a definition of ex post facto

laws. This Court does not find this instruction to be

necessary. The question of whether the Islamic State was a

designated -- or was designated as a foreign terrorist

organization at the time of the defendant's arrest is a

disputed factual issue.

Once again, Defendant Elhuzayel is not precluded

from arguing in its closing that the Islamic State was not

designated as a foreign terrorist organization at the time

of his arrest.

Concerning Proposed Jury Instruction No. 3: This

is the third proposed additional jury instruction, which

states that,

"Mere association or membership does not01:34

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constitute support."

Once again, this Court finds that this instruction

is not -- is unnecessary. The current instruction

concerning, quote, "attempt elements," end of quote, already

includes a line stating that, quote,

"Individuals who act entirely

independently of the foreign terrorist

organization to advance its goals or

objectives are not considered to be

working under the foreign terrorist

organization's direction and control,"

end of quote.

This instruction accurately captures the law on

this issue and further instruction is not helpful.

Concerning Proposed Jury Instruction No. 4: These

involve First Amendment protections. The Court will not

give this instruction for two reasons: First, the other

instructions have already outlined the required elements of

the charged offenses and what the government must prove, and

they specifically provide that the government must prove

more than just speech related to a foreign terrorist

organization. Indeed, they state that the defendants were

charged with attempting and aiding and abetting an attempt

to provide material support to a foreign terrorist

organization; thus, the government must prove more than just

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speech.

Second, I find that this instruction as written

has the potential to confuse the jury.

Concerning Proposed Jury Instruction No. 5:

Mr. Elhuzayel's fifth proposed jury instruction concerns

additional language related to attempting to provide

material support. The request is to include a line stating,

quote,

"It is up to the jury to decide whether

Nader Elhuzayel's act of purchasing a

ticket to Tel Aviv, Israel, with an

overlay (sic) in Istanbul, Turkey,

constitutes a substantial step to join

the Islamic State," end of quote.

This instruction related to Count Two already

states -- I'm sorry -- "the instruction." My apologies.

The instruction that the Court's already giving

related to Count Two already states that the government must

prove beyond a reasonable doubt that, quote,

"The defendant did something that was a

substantial step toward committing the

crime of providing material support or

resources to a foreign terrorist

organization," end of quote.

It's also not necessary to include specific01:37

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factual details of the case in the jury instructions.

Concerning Proposed Jury Instruction No. 6: This

is the sixth proposed additional jury instruction, and it

concerns the designation of a foreign terrorist

organization. Specifically, this instruction provides that

under the statute 18 U.S.C., Section 2339B there is no

provision on foreign terrorist organization aliases.

This Court finds that this instruction is not

necessary. The definition of a foreign terrorist

organization is provided in the existing instructions.

Additionally, the existing instruction already indicates the

government must prove beyond a reasonable doubt that

defendant's provide material support to a foreign terrorist

organization.

And Defendant Elhuzayel is not precluded, though,

from arguing in his closing that he did not provide support

to a designated foreign terrorist organization.

And, lastly, the Court has reviewed the

government's Supplemental Proposed Instruction filed last

evening. And I do not find it necessary.

I believe that it's abundantly clear to the jury

that they are to decide whether any such material support

was provided to a designated foreign terrorist organization

based on the existing instructions.

None of this precludes the parties from arguing01:38

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whether the Islamic State was a designated foreign terrorist

organization at the relevant time.

Now, with those rulings, Counsel, we're going to

make certain you have a final copy, at least for this

evening.

I'm going to schedule a hearing tomorrow at

2:00 o'clock. You're ordered to be present, along with the

defendants. If there's a universal call or a coordinated

call to Debbie, I'll vacate the date. But what I don't want

is a date that's not set aside and a time that's not set

aside for you, and then something comes up on Monday.

Concerning the jury instructions: I have a civil

matter coming in, in just a moment. I don't know how long

that would take. You'll probably tell me it's a brief

period of time. I'm gonna meet you about 3:30. Okay?

Bear with me because I need a little time with

civil counsel. But I'll interrupt their proceedings and

delay them, if we can get to the jury instructions at that

time. So it gives you a little over an hour and 20 minutes

to get them in order; and if not, then just bear with me a

little while, while I talk to civil counsel. And then we'll

resolve the instructions.

We'll get these copies out for you, so I think

that gives you adequate time this afternoon, tonight,

tomorrow to see if there's questions or concerns.

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All of your objections are noted. They're on the

record, as well as the supplemental.

So, Counsel, we'll see you about 3:30.

MS. CORRIGAN: And also for the verdict forms, as

well, Your Honor?

MR. LENGYEL-LEAHU: Yes.

THE COURT: Hm?

MS. CORRIGAN: Also for the verdict forms; right?

We will do them?

THE COURT: Oh, that's the only thing we're doing.

In other words, these instructions now are my

rulings. I'm going to get copies to you that we'll simply

xerox, so you don't have to do that. That way they're all

consistent, one packet.

If you see something between now and the time I

resume the bench -- 'cause we'll get them out to you to look

at informally -- let me know at 3:30. I'm trying to save

you coming back at 2:00 o'clock tomorrow.

MS. CORRIGAN: Thank you.

THE COURT: Okay?


MR. LENGYEL-LEAHU: Thank you, Your Honor.


(Proceedings recess at 1:41 p.m.)

(Proceedings resumed at 3:47 p.m.)03:28

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THE COURT: Counsel, have you had enough time to

discuss these verdict forms?



VERDICT FORMS DISCUSSED

THE COURT: Okay. Then we're on the record in the

matter of Mr. Badawi and Mr. Elhuzayel. All counsel are

present. The jury's not present. The alternates are not

present.

In looking at the verdict forms in chambers, I

have no disagreements. And if the government's satisfied

and the defense is satisfied, I'll send you on your way.

MS. CORRIGAN: We are.

And then we also need to sign the exhibit list in

your presence, Your Honor.

THE COURT: Pardon me?

MS. CORRIGAN: I thought you wanted us to sign the

exhibit list in your presence.

THE COURT: Oh, please, if you would.

EXHIBIT FORMS SIGNED BY COUNSEL

MS. CORRIGAN: For the record, I just signed it

and I'll hand it to co-defendant's counsel.

THE CLERK: Both of them?

MS. CORRIGAN: Both of them, yes. Signing both of03:48

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them.

THE COURT: Okay.

Approximately, how many exhibits are there that

are going to the jury?

MS. CORRIGAN: There are five defense exhibits and

probably -- what? 600? 700 Government's Exhibits? I dunno

how many are in there.

THE COURT: 6- to 700?

If the jury needs any of the videos replayed or

tapes replayed, I've done it both ways. In a voluminous

case, sometimes we've made that equipment available in the

jury room. They do that in the District of Idaho, for

instance. Other times, counsel wants that replayed in open

court. I have no preference.

What's your preference?

MS. CORRIGAN: I would prefer in open court

Your Honor. I don't know about other counsel. But, from my

perspective, because of the way that the discs have been --

the way are -- their current state, I don't want to have any

errors with the jurors, particularly regarding the

statements because we have some fairly lengthy potential --

THE COURT: All right. It'll be open court.

MS. CORRIGAN: Yes.

MR. NAM: (Nods head.)

THE COURT: And I think I'm getting a nod from03:49

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Mr. Nam.

MS. HEINZ: Yes. The government would prefer it

be in open court too so that the -- it would be the same way

it was at trial.

THE COURT: Open court.


THE COURT: And as soon as you've signed that,

give that to Deb.

DISCUSSION RE NEWSCASTS

THE COURT: Now, I want to inform you that on the

news today there may be a heightened drama; and by that, I

mean, apparently different newscasts are reporting an

increased terrorist threat from ISIS.

We're going to be bombarded with that apparently

this weekend. If you want another admonishment to the jury

before you start your opening on Monday, draft that between

you again.

I threw away the other one -- because it was good

for the time and place, but it may not be the admonition

that you want now -- no, Counsel, my apologies. I didn't.

I kept it. The old admonition was,

"If anyone hears or sees anything that

they feel might affect their ability to

continue to be fair and impartial in

this case, they will bring it to Court's

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attention at the earliest time."

Now, we can simply redraft that and make certain,

if you want an admonition read just before your argument on

Monday morning. But I leave that to you.

MS. CORRIGAN: I think -- well, I think what I'd

like to do is just see how the weekend goes. We're aware

that there's been some activity. But, from my perspective,

at least -- maybe if we could do a "wait and see." And I

know that we've been good about communicating, and we can

figure that out.

THE COURT: Let's do that. Reading that too many

times says that there is a problem.

MS. HEINZ: The government would agree with that,

Your Honor.

THE COURT: So let's just wait. Seek a balance on

that on Monday morning. Okay?

MR. LENGYEL-LEAHU: Agreed.

THE COURT: Have you signed the form?

MS. CORRIGAN: Yes.


MR. LENGYEL-LEAHU: (No audible response.)

THE COURT: Does Debbie have it?

MS. HEINZ: Yes.


Now, once again, that signature means that all the03:51

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exhibits are complete, that the presentation of those

exhibits are appropriate; in other words, there's no corner

turned down with any information that you'd object to on the

back. And you know that I won't grant a mistrial or new

trial if there is an item that is missing. Okay?

Is that clear to everybody?

MR. LENGYEL-LEAHU: Clear.



THE COURT: Okay. If -- are these verdict forms

acceptable to the government?

MS. HEINZ: They are, Your Honor.

THE COURT: Are they acceptable to you,

Ms. Corrigan, on behalf of Mr. Badawi?

MS. CORRIGAN: They are, Your Honor.


MR. LENGYEL-LEAHU: They are, Your Honor.

THE COURT: Okay.

(To the defendants:) Now, gentlemen, we're going

to bring you back, obviously, Monday morning. We'll see you

on Monday.

And, Mr. Badawi, you look a lot better. I'm just

pleased to see that you're in a good health. I was very

concerned about you earlier. You don't have to say a word.

I'm just saying you look healthier. And I'm not doing that

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just for the record. I'm just doing that as a human being.

I was very concerned when you got down to 105 pounds.

DEFENDANT BADAWI: I appreciate it.

THE COURT: That was just, uh -- I know you're

about 130, et cetera, so I'd just encourage you to stay

healthy.

DEFENDANT BADAWI: Yeah.

THE COURT: Verdict may be favorable or

unfavorable, but you're not doing yourself any good if you

harm yourself. Okay?

Now, finally, I'm setting tomorrow at 2:00 o'clock

for the hearing. You're ordered back at that time.

What's the easiest way, though, you can inform the

Court, after reflecting on my rulings and looking at the

instructions again this evening? What I don't want is a

pop-up. In other words, I'm trying to avoid: It's Monday

morning, we're about to argue, and somebody comes in with

something that they want to raise at the last moment.

So that's why I'm setting it at 2:00 o'clock. But

I can vacate that date. I'm just gonna bring your clients

over at --

(To U.S. Marshals:) -- probably noon, Marcelino.

Mike, probably noon.

U.S. MARSHAL: Yes, Your Honor.

THE COURT: And, if you call before a certain03:53

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time, I won't have them transported. If you don't call,

then I will. How do you wanna work that?

MS. CORRIGAN: I think perhaps we can continue to

meet, but -- maybe by 11:00. But, if we could do a joint

e-mail, and if the Court -- if everybody's in agreement,

I'll CC everybody. But, if they give me the "go ahead," I

can e-mail the Court.

THE COURT: Is that fair, Mr. --

MR. LENGYEL-LEAHU: That works, Your Honor.

MS. HEINZ: That's fine with the government,

Your Honor.

THE COURT: All right. Debbie can take that

informally. I don't need a written stipulation. It just

lets me know to reconvene. (Verbatim.)

Also, I can reconvene anytime this weekend. I

don't think it's necessary. But, if you need me, for

goodness sakes, you can get ahold of me. Okay? I'll

probably be right here working, in fact.

Well, is there anything further this evening,

then?

MS. CORRIGAN: No, Your Honor.

MR. LENGYEL-LEAHU: No, Your Honor.

MS. HEINZ: No, Your Honor.

THE COURT: All right. Then prepare your

arguments, then. And we'll see you Monday morning bright

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and early.



THE COURT: Well, just a moment. We're back on

record.

Okay. Now we have a revised Indictment.

What am I going to do with that?

Am I supposed to read that to the jury?

MS. CORRIGAN: No, Your Honor. I think what was

contemplated -- it was just, um -- there was a spelling --

couple typos on the names. It's nothing that it would

affect the way that it was read to the jury when the Court

read it. It's just some typographical errors. And

everything that you "read in" is identical to what's there.

THE COURT: Is it stipulated that that can be

filed, then, as part of the Court record: I'm not going to

read the revised Indictment to the jury; that it's really a

matter of misspelling of words basically?

MS. HEINZ: So stipulated.

MR. LENGYEL-LEAHU: Stipulated.

MS. CORRIGAN: Stipulated.

THE COURT: Okay.

All right. Then it will simply be filed.

Debbie handed it to me. She thought it was part

of the jury instructions.

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Okay. Thank you very much.


MS. ELIOT: Thank you, Your Honor.


MR. LENGYEL-LEAHU: Thank you, Your Honor.

(Proceedings adjourned at 3:55 p.m.)

-oOo-

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-oOo-

CERTIFICATE

I hereby certify that pursuant to Section 753,

Title 28, United States Code, the foregoing is a true and

correct transcript of the stenographically reported

proceedings held in the above-entitled matter and that the

transcript page format is in conformance with the

regulations of the Judicial Conference of the United States.

Date: March 9, 2017

/s/ Debbie Gale

_________________________________ DEBBIE GALE, U.S. COURT REPORTER CSR NO. 9472, RPR, CCRR

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Documents

8:15-CR-0060-DOC - 6/16/2016 - Day 8, Volume II 1 UNITED ......Case 8:15-cr-00060-DOC Document 298 Filed 03/31/17 Page 2 of 50 Page ID #:5012. 3 DEBBIE GALE, U.S. COURT REPORTER 8:15-CR-0060-DOC